Genetic Testing and the Future of Disability Insurance: Thinking about Discrimination in the Genetic Age

Watson J. D. and Crick F. H. C. , “Molecular Structure of Nucleic Acids: A Structure for Deoxyribose Nucleic Acid,” Nature 171 (1953): 737–738.

Wade N. , “DNA, the Keeper of Life's Secrets, Starts to Talk,” New York Times, February 3, 2003.

See Darwin C. , The Origin of Species by Natural Selection; or, the Preservation of Favored Races in the Struggle for Life (London: John Murray, 1859); Darwin C. , The Descent of Man, and Selection in Relation to Sex (London: John Murray, 1871).

See infra notes 6 and 7.

Id.

Galton Francis , an English scientist, advocated the theory that the best and brightest people would produce the best and brightest offspring. He coined the term “eugenics” (meaning wellborn), and his views on heredity and breeding became known as “positive eugenics.” Carlson E. , “Scientific Origins of Eugenics,” Eugenics Archive, available at <http://www.eugenicsarchive.org/eugenics/list3.pl> (follow “Scientific Origins” hyperlink) (last visited March 5, 2007).

In the United States, “negative eugenics” took root. Negative eugenics assumed that by preventing people with “undesirable” traits from breeding, the human gene pool would be enhanced because these traits could be purged from human stock. Id.

Galton Francis was Charles Darwin's cousin. He believed that Darwin's theories could help create a better race of people, stating, “what Nature does blindly, slowly, and ruthlessly, man may do providently, quickly, and kindly.” Kevles D. , In the Name of Eugenics (New York: Alfred A. Knopf, 1985): at 12.

See generally Lombardo P. , “Eugenic Sterilization Laws,” Eugenics Archive, available at <http://www.eugenicsarchive.org/eugenics/list3.pl> (follow “Sterilization Laws” hyperlink) (last visited March 5, 2007).

In 1920, Congress began working on a bill to restrict immigration of eastern European immigrants. The chairman of the House Committee on Immigration and Naturalization appointed an employee of the Eugenics Record Office to study recent immigrants who were confined in state institutions. The employee, Laughlin Harry , later testified falsely that most inmates were recent immigrants or the children of immigrants and concluded that these people threatened the eugenic health of the nation. In 1924, Congress passed an immigration law which limited the number of immigrants from European countries to “a small percentage of the foreign-born of the same national origin recorded in the census of 1890.” Congressman Robert Allen, Democrat from West Virginia, stated, “The primary reason for the restriction of the alien stream…is the necessity for purifying and keeping pure the blood of America.” It should also be noted that former President Calvin Coolidge, who signed the bill into law, stated when he was vice president that “America must be kept American. Biological laws show…that Nordics deteriorate when mixed with other races.” See Kevles , supra note 8, at 97–103.

Ogltree C. J. Jr. , “America's Schizophrenic Immigration Policy: Race, Class, and Reason,” Boston College Law Review 41 (2000): 755–770, at 759.

See generally Scharf I. , “Tired of Your Masses: A History of and Judicial Responses to Early 20th Century Anti-Immigrant Legislation,” University of Hawaii Law Review 21 (1999): 131–167.

Buck v. Bell, 274 U.S. 200 (1927).

Virginia Sterilization Act, 1924 Va. Acts ch. 394.

Id.

Cynkar R. J. , “Buck v. Bell: ‘Felt Necessities’ v. Fundamental Values?” Columbia Law Review 81 (1981): 1418–1461, at 1457.

Polirstok S. , “Buck v. Bell: A Case Study,” Binghamton Journal of History, available at <http://history.binghamton.edu/resources/bjoh/BuckvsBell.htm> (last visited March 5, 2007).

Buck v. Bell, 274 U.S. 200 (1927).

The Eugenics Record Office (ERO) was the brainchild of Davenport Charles B. , a leading eugenics advocate in the early 20th century. Initially, Harriman E. H. Mrs. , who managed her late husband's railroad fortune, bankrolled the project. After Harriman founded the ERO, Davenport wrote to her, “What a fire you have kindled! It is going to be a purifying conflagration some day!”(emphasis in original). Later, the Carnegie Institute of Washington financially supported the ERO. Students of the ERO catalogued the backgrounds of various groups, such as albinos, the feebleminded, and the insane. Their reports were used for such things as reports to legislative committees. See Kevles , supra note 8, at 54–56.

Laughlin Harry was superintendent of the Eugenics Record Office. After dabbling in eugenics studies, he went on to receive a doctorate of science from Princeton University. Laughlin worked on such eugenic projects as attempting to prove that the number of immigrants in institutions for the feebleminded and insane were recent immigrants. See Kevles , supra note 8, at 102–103.

This quotation has been variously attributed to both Harry Laughlin (see Gould S. J. , “Carrie Buck's Daughter: A Popular Quasi-Scientific Idea Can Be a Powerful Tool for Injustice (This View of Life),” Natural History, July-August, available at <http://www.findarticles.com/p/article/mi_m1134/is_6_111/ai_87854861> [last visited January 9, 2007]) and Priddy Albert Dr. , Superintendent of the Virginia Colony for Epileptics and Feeble Minded (see Micklos D. , “None Without Hope: Buck vs. Bell at 75,” Gene Almanac, available at <http://kar-mak.org/archive/2004/06/buckvbell.html> [last visited March 5, 2007]). As both men were supporters of eugenics practices, it is not surprising that either man would make that statement.

Buck v. Bell, 274 U.S. 200, 207 (1927).

See Gould , supra note 21.

Quinn P. , “Race Cleansing in America,” American Heritage magazine, February-March 2003: 34–43, at 35, available at <http://www.libarts.ucok.edu/history/faculty/roberson/course/1493/readings/1493.Race%20Cleansing%20in%20America.%202003.htm> (last visited March 5, 2007).

See Gatter K. M. , “Genetic Information and the Importance of Context: Implications for the Social Meaning of Genetic Information and Individual Identity,” St. Louis University Law Journal 47 (2003): 423–462, at 427; Curley R. A. Jr. and Caperna L. M. , “The Brave New World Is Here: Privacy Issues and the Human Genome Project,” Defense Counsel Journal 70 (2003): 22–35, at 29.

See Stipp D. , “The Prince of Nucleotides,” Fortune, October 27, 2002.

See infra notes 51–55.

See generally Hustead J. and Goldman J. , “Medical and Genetic Privacy in the Workplace: The Gaps in Existing Laws,” The Health Privacy Project, March 2002.

See Billings P. R. , “Discrimination as a Consequence of Genetic Testing,” American Journal of Human Genetics 50 (1992): 476–482, at 476 (describing anecdotal evidence of discrimination against individuals based on “apparent or perceived” genetic abnormalities).

See Prepared Witness Testimony, available at <http://energycommerce.house.gov/107/hearings/07112001Hearing322/Venter520.htm> (last visited January 9, 2007).

Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071.

Id.

Id.

Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621.

See Civil Rights Act of 1991, supra note 31.

Americans with Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat. 327.

Id.

See Berk v. Bates Broadcasting USA, 1997 WL 749386, at *5 (S.D.N.Y. Dec. 3, 1997).

Id.

See 2 U.S. EEOC, Compliance Manual, Order 915.022, at 902–45 (1995). In these guidelines, the EEOC provides an example of how genetic discrimination may occur. “CP's (Charging Party's) genetic profile reveals an increased susceptibility to colon cancer. CP is currently asymptomatic and may never in fact develop colon cancer. After making CP a conditional offer of employment, R (Respondent) learns about CP's increased susceptibility to colon cancer. R then withdraws the job offer because of concerns about matters such as CP's productivity, insurance costs, and attendance. R is treating CP as having an impairment that substantially limits a major life activity. Accordingly, CP is covered by the third part of the definition of ‘disability.’”

Id.

See Weems J. , “A Proposal for a Federal Genetic Privacy Act,” Journal of Legal Medicine 24 (2003): 109–126, at 114; Curley and Caperna , supra note 25, at 30.

See Senator Enzi's Remarks on Genetic Information Amendment, available at <http://enzi.senate.gov/genetic.htm> (last visited March 5, 2007).

Johnson F. , “Bipartisan Genetic Bias Bill Clears Committee on Voice Vote,” Daily Labor Report, May 22, 2003, at AA-1.

Genetic Information Non-Discrimination Act of 2005, H.R. 1227, 109th Cong. 2005 and Genetic Information Non-Discrimination Act of 2005, S. 306, 109th Cong. (2005).

Genetic Information Non-Discrimination Act of 2005, S. 306, 109th Cong. (2005).

Bush G. W. , Radio Address by the President to the Nation, available at <http://www.whitehouse.gov/news/releases/2001/06/20010623.html> (last visited March 5, 2007).

See “State Genetics Employment Laws Database,” National Conference of State Legislators, available at <http://www.ncsl.org/programs/health/genetics/ndiscrim.htm> (last visited March 5, 2007).

Id.

See Jones S. , “The DNA Dilemma,” The News and Observer, October 22, 2000, at E1 (discussing the case of Seargent v. Hanover Excess & Surplus, in which a woman alleged she was fired because of a genetic lung condition).

Agreed Order, Equal Employment Opportunity Comm'n v. The Burlington Northern and Santa Fe Ry. Co., (No.02-C-0456).

Complaint, Equal Employment Opportunity Comm'n v. The Burlington Northern and Santa Fe Ry. Co., (No. 02-C-0456).

Id.

See Agreed Order, supra note 51.

Flynn A. , “Racial Disparities in the Allocation of Stem Cells,” DePaul Journal of Health Care Law 6 (2002): 179–200, at 187.